Opinion
No. CV-19-04847-PHX-DWL (MTM)
06-22-2020
Aaron Lamar Sharpe, Petitioner, v. David Shinn, et al., Respondents.
REPORT & RECOMMENDATION
TO THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE:
Petitioner Aaron Lamar Sharpe has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1, 9).
I. Summary of Conclusion.
Petitioner raises four grounds for relief. Petitioner asserts he received ineffective assistance of counsel at trial (Ground One) and that he was denied counsel in violation of the Sixth Amendment (Ground Three). In Ground Two, Petitioner asserts that his Fourth Amendment rights were violated by a warrantless search; Ground Four asserts that the state court failed to sentence him in a timely manner.
The Court will recommend that the petition be denied and dismissed with prejudice. As to Grounds One and Three, Petitioner has failed to show that the state court was objectively unreasonable in finding that Petitioner's Sixth Amendment rights had not been violated; for Ground Two, habeas relief is not available because Petitioner had an adequate opportunity to litigate his Fourth Amendment claim in the state courts. Ground Four does not allege a cognizable claim for habeas relief.
II. Background.
A. Factual Background and Direct Appeal.
On February 5, 2015, Petitioner was convicted at trial of multiple felonies in Pinal County Superior Court; Petitioner was sentenced on December 9, 2015. (Doc. 10-1, Ex. C at 168-69, Doc. 10-1, Ex. G). On appeal, Petitioner argued he had been denied his Sixth Amendment right to counsel and that the trial court violated Rule 26.3 of the Arizona Rules of Criminal Procedure by failing to sentence him in a timely manner. (Doc. 10-1, Ex. K). In affirming Petitioner's convictions and sentences, the Arizona Court of Appeals summarized the trial and sentencing proceedings:
Under 28 U.S.C. § 2254(e)(1), the Court presumes that the state court's recounting of the facts is correct.
Aaron Sharpe was convicted of conspiracy to commit armed robbery and/or theft, armed robbery, kidnapping, aggravated assault with a deadly weapon or dangerous instrument, theft, and misconduct involving weapons. The trial court sentenced him to concurrent and consecutive prison terms totaling twenty-four years.
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Sharpe's convictions stem from a 2011 armed robbery. His first trial ended in a mistrial because counsel for a codefendant became unavailable due to a medical condition. Shortly thereafter, his counsel was suspended from the practice of law for sixty days. Two weeks after the mistrial was declared, Sharpe requested new counsel, claiming his trial counsel had not visited him or returned his telephone calls since the mistrial.
At a hearing on that request, Sharpe asserted his trial counsel had not been prepared for trial and, "with all the times that he's saying he's going to come and show up and he never shows up," Sharpe had "no communication" with counsel and "there is no kind of trust there with me and this attorney no longer." The court denied Sharpe's request for new counsel, noting that current counsel had been prepared for trial and that it would
order counsel to make contact with Sharpe immediately after his suspension ended and to be ready for trial. After a second trial, Sharpe was convicted and sentenced as described above.State v. Sharpe, 2017 WL 3097584, at *1 (Ariz. Ct. App. July 21, 2017) ("Sharpe I").
The Court of Appeals found that Petitioner had not been denied counsel under the Sixth Amendment, as Petitioner had not identified "any stage of his proceeding at which he was required to proceed without counsel—substitute counsel represented Sharpe at each of his court appearances until trial counsel's suspension ended." (Id.). As to any delay in sentencing, the Court found that Petitioner "did not object below and, indeed, requested numerous times that his sentencing hearing be continued." (Id. at 2). The Court noted that even if it assumed a violation of Rule 26.3 had occurred, any error was not fundamental and Petitioner had waived review of non-fundamental error. (Id.).
On September 29, 2017, Petitioner filed a petition for review in the Supreme Court of Arizona. (Doc. 10-2, Ex. N). On January 23, 2018, the Court denied the petition for review. (Doc. 10-2, Ex. O). The Court of Appeals issued the mandate on March 8, 2018. (Doc. 10-2, Ex P).
B. Post-Conviction Review Proceedings.
On March 12, 2018, Petitioner filed a notice for post-conviction relief ("PCR"). (Doc. 10-2, Ex. Q). On July 20, 2018, represented by counsel, Petitioner filed his PCR petition. (Doc. 10-2, Ex. S). Petitioner argued that his trial counsel had been ineffective, alleging that counsel had a substance abuse issue, had failed to request a severance or communicate with him, had not contacted him while suspended from the practice of law, and had failed to investigate mitigation for sentencing. (Id. at 5-10). Petitioner also argued that his conviction should be vacated because, in 2011, law enforcement had obtained his cell phone tower records without a warrant; Petitioner argued that Carpenter v. United States, 138 S. Ct. 2206 (2018) represented a significant change in the law that entitled him to suppression of evidence obtained from cell phone records. (Id. at 10-12).
On November 13, 2018, the Superior Court denied the PCR petition, stating that "all matters contained in the Petition for Post-Conviction Relief are precluded as having been previously ruled upon or untimely filed or the Petition lacks sufficient basis in law and fact to warrant further proceedings herein and no useful purpose would be served by further proceedings. . . ." (Doc. 10-3, Ex. X).
On February 14, 2019, Petitioner filed a petition for review with the Arizona Court of Appeals. (Doc. 10-3, Ex. Y). On June 7, 2019, the Court granted review but denied relief. State v. Sharpe, 2019 WL 2404948 (Ariz. Ct. App. June 7, 2019) ("Sharpe II"). The Court noted that an allegation that "trial counsel may have been intoxicated during portions" of trial should "capture any court's attention, and would often compel an evidentiary hearing to further explore that question," but denied relief because Petitioner had not developed "concrete allegation[s] of prejudice, in a case where the evidence of his guilt was overwhelming." (Id. at *2). As Petitioner had specifically raised "possible intoxication on the first day of trial," id. at *1, the Court undertook review of that specific claim:
[w]e have reviewed the transcript of the first day of trial. Sharpe's counsel asked to sit, citing a "cramp in [his] leg," but he answered questions, and nothing in the record suggests any other problematic behavior.(Id. n.1). Further, the Court noted that Petitioner had not cited any evidence in support of his claim that the bailiff had noticed counsel was "shaking." (Id.). Accordingly, the Court found that "[i]n large part, [Petitioner] fails to assert specific failures by counsel resulting from his problems that prejudiced [Petitioner's] defense." (Id. at *1).
The Court denied Petitioner's claim that Carpenter v. United States constituted a significant change in law entitling him to relief, finding that Carpenter was inapposite, as the "cellular records in question in this case were a 'tower dump,' or the record of all calls going through a nearby tower at a certain time," and "Carpenter specifically stated it was not addressing such records." (Id. at *2).
Petitioner did not petition for review to the Arizona Supreme Court; the Court of Appeals issued the mandate on August 8, 2019. (Doc. 10-3, Ex. BB).
C. Federal Habeas Petition.
Petitioner filed his timely federal habeas petition on July 29, 2019 (doc. 1) and a supplement on September 20, 2019. (Doc. 9). He asserts four grounds for relief: (1) ineffective assistance of trial counsel; (2) significant change in law based on Carpenter v. United States; (3) trial court error in denying the Sixth Amendment right to counsel; and (4) trial court error for failure to timely sentence. (Doc. 1 at 6-9; Doc. 9 at 4-9).
On November 8, 2019, Respondents filed their response. (Doc. 10). On December 13, 2019, Petitioner filed his reply (Doc. 11).
III. Standard of Review.
The writ of habeas corpus affords relief to persons in custody pursuant to the judgment of a state court in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § § 2241(c)(3), 2254(a). Petitions for Habeas Corpus are governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). 28 U.S.C. § 2244.
A. Merits.
The Court may not grant a writ of habeas corpus to a state prisoner on a claim adjudicated on the merits in state court proceedings unless the state court reached a decision which was contrary to clearly established federal law, or the state court decision was an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d); Shoop v. Hill, 139 S. Ct. 504, 506 (2019). Federal habeas relief under Section 2254(d) "is a 'guard against extreme malfunctions in the state criminal justice systems,'" not a substitute for error correction through appeals. Harrington v. Richter, 562 U.S. 86, 102-3 (2011).
"A state-court decision is contrary to this Court's clearly established precedents if it applies a rule that contradicts the governing law set forth in our cases, or if it confronts a set of facts that is materially indistinguishable from a decision of this Court but reaches a different result." Brown v. Payton, 544 U.S. 133, 141 (2005).
An unreasonable application of clearly established federal law occurs if the state court "'either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable.'" DeWeaver v. Runnels, 556 F.3d 995, 997 (9th Cir. 2009) (quoting Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002)). An "objectively unreasonable" application of clearly established federal law requires more than being "merely wrong; even clear error will not suffice." White v. Woodall, 572 U.S. 415, 419 (2014).
The AEDPA requires that the habeas court review the "last reasoned state-court decision." Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003). The petitioner has the burden of showing that the state court decision was objectively unreasonable, Harrington, 562 U.S. 86 at 98, and that the error was not harmless and resulted in "actual prejudice." Davis v. Ayala, 135 S. Ct. 2187, 2197 (2015). Factual findings of a state court are presumed to be correct and can be reversed by a federal habeas court only when the federal court is presented with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). The "presumption of correctness is equally applicable when a state appellate court, as opposed to a state trial court, makes the finding of fact." Sumner v. Mata, 455 U.S. 591, 593 (1982).
B. Fourth Amendment Claims.
The Fourth Amendment provides: "[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated . . . ." U.S. Const. amend. IV. The "exclusionary rule" prohibits evidence obtained through an illegal search or seizure of a defendant from being introduced in a prosecution to incriminate a defendant. Stone v. Powell, 429 U.S. 465, 481-87 (1976). In the context of a federal habeas corpus petition, however, the "contribution of the exclusionary rule, if any, to the effectuation of the Fourth Amendment is minimal, and the substantial societal costs of application of the rule persist with special force." (Id. at 494-95). Thus, "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." (Id. at 494).
"The relevant inquiry is whether petitioner had the opportunity to litigate his claim, not whether he did in fact do so or even whether the claim was correctly decided." Newman v. Wengler, 790 F.3d 876, 880 (9th Cir. 2015) (quoting Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996)). "All Stone v. Powell requires is the initial opportunity for a fair hearing. Such an opportunity for a fair hearing forecloses this court's inquiry, upon habeas corpus petition, into the trial court's subsequent course of action, including whether or not the trial court has made express findings of fact." (Id. at 881) (quoting Caldwell v. Cupp, 781 F.2d 714, 714 (9th Cir.1986)).
IV. Ground One - Ineffective Assistance of Counsel.
"The 'clearly established federal law' for an ineffective assistance of counsel claim under the Sixth Amendment derives from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984) . . . ." Hardy v. Chappell, 849 F.3d 803, 818 (9th Cir. 2016). "An ineffective assistance claim has two components: A petitioner must show that counsel's performance was deficient, and that the deficiency prejudiced the defense." Wiggins v. Smith, 539 U.S. 510, 521 (2003).
To prevail on this ground, Petitioner must show "the state court applied Strickland to the facts of his case in an objectively unreasonable manner." Woodford v. Visciotti, 537 U.S. 19, 25 (2002). Federal habeas review of a state court ruling on a Strickland claim is subject to "double deference" because "the federal court asks whether it was reasonable for the state court to find whether trial counsel's performance fell within the range of reasonable professional assistance." Hardy, 849 F.3d at 825 & n.10 (citing Knowles v. Mirzayance, 556 U.S. 111 (2009)). "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington, 562 U.S. at 105.
A. Pleadings and Procedural Bar.
The Court of Appeals, in its "last reasoned decision," was not objectively unreasonable in rejecting Petitioner's claim of ineffective assistance by trial counsel. The Court noted that Petitioner failed to "assert specific failures by counsel resulting from his problems that prejudiced Sharpe's defense." Sharpe II, 2019 WL 2404948, at *1; further, the Court found "petitioner has developed no concrete allegation of prejudice, in a case where the evidence of his guilt was overhelming." (Id. at *2). In his Petition for Habeas Corpus, Petitioner similarly fails to present any support for his claim of ineffective assistance, except for a Fourth Amendment claim, stating:
no contact with [counsel], no trust and when I told him to put motions to suppress the cell phone records he did nothing, when he said he would.(Doc. 1, at 6; see also Doc. 9, at 4-5).
As an initial matter, the Court of Appeals did not err in finding as waived specific claims of error not raised by Petitioner in his Petition for Review. Sharpe II, 2019 WL 2404948, at *2 & n.2; see Ariz. R. Crim. P. 32.16(c)(4) ("A party's failure to raise any issue that could be raised in the petition for review or cross-petition for review constitutes a waiver of appellate review of that issue."). Accordingly, those claims not raised before the Arizona Court of Appeals are procedurally barred from federal review. See Sauceda v. Shinn, 2020 WL 2067012, at *10 (D. Ariz. Apr. 13, 2020) ("The state appellate court found these claims waived by an adequate and independent state procedural rule and, therefore, these claims are procedurally barred.")
Further, as Respondent noted in its Answer (doc. 10, at 18), Petitioner in his Supplemental Petition (doc. 9) raises numerous factual allegations about trial counsel that "occurred outside the record of this case," including allegations about trial counsel's work in a separate case not involving Petitioner. (Id. at 4-5). As Respondent also noted, trial counsel's work on an unrelated case has no bearing on whether trial counsel rendered effective assistance to Petitioner. (Doc. 10, at 18). See Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) for the proposition that ineffective assistance of counsel claims are case-by-case determinations under Strickland's general standard). To the extent Petitioner in his Petition for Writ of Habeas Corpus has submitted unrelated records outside of the record that was before the Arizona Court of Appeals in the Petition for Review, this Court may not review material or arguments that were not submitted to the state court. See Cullen v. Pinholster, 563 U.S. 170, 181 (2011) ("We now hold that review under 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits."). Given the procedural bar and the irrelevance of Petitioner's additional factual allegations, only two claims for ineffective assistance of counsel remain for review.
B. Substance Abuse Allegations.
As noted by the Arizona Court of Appeals, the State acknowledged in its briefing that trial counsel had a "serious substance problem." Sharpe II, 2019 WL 2404948, at *1. Nonetheless, the Court of Appeals found that trial counsel's performance did not fall below objectively reasonable standards and prejudice Petitioner. (Id. at *1-2). The proper inquiry for this Court is not whether trial counsel had an alcohol or substance abuse problem; rather, the inquiry is whether the Arizona Court of Appeals unreasonably applied Strickland in analyzing trial counsel's performance. "[U]nder Strickland the fact that an attorney used drugs is not, in and of itself, relevant to an ineffective assistance claim. The critical inquiry is whether, for whatever reason, counsel's performance was deficient and whether that deficiency prejudiced the defendant." Berry v. King, 765 F.2d 451, 454 (5th Cir. 1985) (reasoning adopted by Bonin v. Calderon, 59 F.3d 815, 838 (9th Cir. 1995)).
The Arizona Court of Appeals did not apply Strickland to Petitioner's case in an objectively unreasonable manner. The Court of Appeals carefully reviewed Petitoner's specific claims that trial counsel had been intoxicated on the first day of trial or "shaking," Sharpe II, 2019 WL 2404948, at *1 & n.1. In evaluating trial counsel's performance, the Court of Appeals specifically reviewed the trial transcript of the first day of trial and found nothing in the record to support the allegation of intoxication or "any other problematic behavior." (Id. at n.1). Having found those allegations to be unsupported or contradicted by the record, the Court of Appeals noted that Petitioner failed to show any prejudice by counsel's performance, as he had "fail[ed] to assert specific failures by counsel resulting from his problems." (Id. at *1). In his Petition for Writ of Habeas Corpus, Petitioner does not present any argument disputing the conclusions of the Arizona Court of Appeals in denying his claim of ineffective assistance of counsel on the grounds that his trial counsel was ineffective because of a substance abuse issue. Accordingly, on this ground, Petitioner is not entitled to relief. See 28 U.S.C. § 2254(e)(1) (a petitioner has the burden of rebutting the state court's "presumption of correctness" by clear and convincing evidence); see also Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011) (a "cursory and vague claim cannot support habeas relief").
C. Motion to Suppress.
As part of his claim of ineffective assistance of trial counsel, Petitoner alleges, relying on Carpenter v. United States, 138 S. Ct. 2206 (2018), that trial counsel was ineffective for not having moved to suppress "cell phone records." (Doc. 1, at 6; Doc. 9, at 6). Carpenter v. United States was decided in 2018, several years after Petitioner's conviction at trial in February of 2015. (Doc. 10-1, Ex. C at 168-9). Trial counsel was not ineffective for failing to predict the Supreme Court's decision in Carpenter. See Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994) (finding counsel was not ineffective because a "lawyer cannot be required to anticipate our decision" in a later case); Bullock v. Carver, 297 F.3d 1036, 1052 (10th Cir. 2002) (rejecting ineffective assistance claim based upon counsel's failure to predict future changes in the law, as "clairvoyance is not a required attribute of effective representation.").
Further, even if trial counsel had been gifted with clairvoyance as to the future decision in Carpenter, Carpenter would not have provided trial counsel with a basis for a motion to suppress. In his Supplemental Petition, Petitioner acknowledges that the records obtained by law enforcement were from a "tower dump." (Doc. 9, at 6; id. Ex. C at 45). As the Arizona Court of Appeals correctly noted, the Court in Carpenter specifically excluded such records from its decision. Sharpe II, 2019 WL 2404948, at *2. See Carpenter, 138 S. Ct. at 2220. ("We do not express a view on...real time CSLI or 'tower dumps' (a download of information on all the devices that connected to a particular cell site during a particular interval)."). Any potential motion to suppress based on the reasoning in Carpenter would have been futile, given that Carpenter's reasoning did not extend to "tower dumps." See Petrocelli v. Baker, 869 F.3d 710, 723 (9th Cir. 2017), as amended (Aug. 23, 2017) ("A failure to make a motion to suppress that is unlikely to succeed generally does not constitute ineffective assistance of counsel."); James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994) ("Counsel's failure to make a futile motion does not constitute ineffective assistance of counsel."). Accordingly, the Court of Appeals did not apply Strickland in an objectively unreasonable manner in finding that trial counsel was not ineffective in failing to move to suppress, without a legal basis, the obtaining of records through a tower dump. V. Ground Two - Carpenter v. United States.
Petitioner asserts that his Fourth Amendment rights were violated by law enforcement's obtaining of records of all calls going through a cell tower at a particular time (a tower dump); Petitioner asserts that Carpenter v. United States, 138 S. Ct. 2206 (2018) constituted a significant change in law entitling him to relief. (Doc. 1, at 7; Doc 9, at 6-7).
Petitioner presented this argument to the Arizona Court of Appeals, and had a full and fair opportunity to litigate this claim. As noted in this Court's discussion of Ground One, the Arizona Court of Appeals directly addressed Petitioner's claims related to Carpenter. Sharpe II, 2019 WL 2404948, at *2. The Court of Appeals rejected Petitioner's assertion that he was entitled to relief based on Carpenter constituting a significant change in law. The Court noted that the holding in Carpenter regarding historical cell phone records that provide a comprehensive chronicle of a user's past movements, did not apply to all types of cellular records, such as the records obtained in Petitioner's case that, in contrast, provided information on all devices that connected to a particular cell site during a particular interval. (Id.).
On this record, Petitioner is not entitled to habeas relief. As the Court stated in Stone v. Powell, 429 U.S. 465 (1976) "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." (Id. at 494). Petitioner did have his opportunity to litigate his claim. Petitioner acknowledges that it was raised directly in his Petition for Review to the Arizona Court of Appeals. (Doc. 1, at 7). Petitioner's claim of error by the Court of Appeals in determining that Carpenter was not a significant change in law at least as applied to his case, is rooted in a Fourth Amendment claim that the exclusionary rule should have barred evidence in his case. On habeas review, such a claim is not grounds for relief. See Newman, 790 F.3d at 881 ("As in Stone itself, all we have is a claim of error - and that is not enough to support collateral relief based on the exclusionary rule.") (quoting Hampton v. Wyant, 296 F.3d 560, 565 (7th Cir. 2002)).
VI. Ground Three - Sixth Amendment Right To Counsel.
Petitioner alleges the trial court's denial of his motion to change counsel, raised by Petitioner while his counsel was temporarily suspended from practice, denied him his Sixth Amendment right to counsel. (Doc. 1, at 8). The "last reasoned decision" addressing Petitioner's claim is the Arizona Court of Appeals decision in his direct appeal. Sharpe I, 2017 WL 3097584. The Court of Appeals held that Petitioner did not identify "any stage of his proceeding at which he was required to proceed without counsel" because he had substitute counsel at every court appearance during his counsel's suspension period. Sharpe I, 2017 WL 3097584, at *1. The Court of Appeals also held that Petitioner had waived this claim by not developing any argument that gaps in communication "constitut[ed] a complete breakdown in communication," or that the trial court abused its discretion in denying his motion to substitute counsel. (Id.).
The Court of Appeals was not objectively unreasonable in its analysis. "The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel at all critical stages of the proceeding." Carter v. Davis, 946 F.3d 489, 507 (9th Cir. 2019). "An irreconcilable conflict in violation of the Sixth Amendment occurs only where there is a complete breakdown in communication between the attorney and client, and the breakdown prevents effective assistance of counsel." Stenson v. Lambert, 504 F.3d 873, 886 (9th Cir. 2007). "To determine whether a conflict rises to the level of 'irreconcilable,' a court looks to three factors: 1) the extent of the conflict; 2) the adequacy of the inquiry by the trial court; and 3) the timeliness of the motion for substitution of counsel." (Id.). "A trial court's inquiry regarding counsel's performance on a motion to substitute counsel should be 'such necessary inquiry as might ease the defendant's dissatisfaction, distrust, and concern'" and "should provide a 'sufficient basis for reaching an informed decision' regarding whether to appoint new counsel." (Id.) (quoting United States v. Garcia, 924 F.2d 925, 926 (9th Cir. 1991); United States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986)).
The trial court did conduct the necessary inquiry into trial counsel's performance such that its decision not to appoint new counsel prior to the second trial was an informed decision, and Petitioner has made no showing that the Court of Appeals was objectively unreasonable in finding that Petitioner had not been denied counsel "in the time period between the mistrial and the end of counsel's suspension." Sharpe I, 2017 WL 3097584, at *1.
The trial court ultimately did appoint new counsel for Petitioner after the second trial, approximately three months prior to Petitioner's sentencing. See Sharpe II, 2019 WL 2404948, at *1; (Doc. 10-1, Ex. K, at 13).
Shortly after Petitioner's first trial ended in a mistrial, Petitioner's trial counsel was suspended from the practice of law for 60 days. (Id.). At a hearing on December 8, 2014, on Petitioner's post trial motion to change counsel (Doc. 10-1, Ex. K at 7), Petitioner acknowledged that on October 22, 2014, he had been made aware of counsel's suspension. (Id. at 7-8). At a subsequent hearing, on December 23, 2014, the court read into the record the contents of a letter it had received from counsel explaining that he could not attend the hearing while he was suspended, but counsel anticipated he would be reinstated on January 7, 2015, and would "do everything in [his] power and responsibility to be prepared to start after my reinstatement has been completed." (Id. at 9). In urging that his suspended counsel be replaced, Petitioner raised the lack of communication and lack of trust he had in his counsel. (Id. at 10).
The mistrial was caused by unavailability of counsel for a codefendant due to a medical condition. Sharpe I, 2017 WL 3097584, at *1.
The trial court denied the motion for termination of counsel, noting:
. . . I have no doubt that based on my observations during the trial [counsel] was prepared for trial. He had command of the facts, whether or not you agree with certain strategy decisions he may have made that - you know, I understand that you may have disagreements with him. Obviously the lack of communication had to do with [counsel] being suspended from the practice of law shortly after that last hearing date. While that's very unfortunate, while that prohibits him from having contact with you, there are a number of considerations that I have to look at in this case.(Doc. 10-1, Ex. K at 10; Ex. L at 9).
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I know that it's an inconvenience to you that you have not been able to have communications with him, but I anticipate based on what he's telling me in his email that at the very latest his license will be reinstated by no later than January 7th. In light of - and other factors that I have to consider is the three co-defendants' right to a speedy trial as well. And obviously this matter has been pushed off long enough, it needs to come to a resolution and that is my intent, that this will come to a resolution starting with trial on January 13th.
In denying Petitioner's claim of a Sixth Amendment violation, the Court of Appeals found that Petitioner had not developed any argument regarding a "complete breakdown in communication." Sharpe I, 2017 WL 3097584, at *1. The Court of Appeals' decision was not objectively unreasonable, and Petitioner does not present arguments in his Petition for Habeas Corpus to dispute that finding. As noted by the Court of Appeals, Petitioner's claim of lapse in communication focused on the "time period between the mistrial and end of counsel's suspension." (Id.). The trial court found that trial counsel had been prepared for trial and had command of the facts (Doc. 10-1, Ex. K at 10; Ex. L at 9); in his Petition for Habeas Corpus, Petitioner does not dispute those findings. (Doc. 1, at 8). Further, Petitioner does not dispute the finding by the Court of Appeals that in the period after the mistrial but before the second trial began, that Petitioner did have counsel while his trial counsel served his suspension. As the Court noted:
[Petitioner] has not identified any stage of his proceeding at which he was required to proceed without counsel - substitute counsel represented [Petitioner] at each of his court appearances until trial counsel's suspension ended.Sharpe I, 2017 WL 3097584, at *1. In fact, the Petition acknowledges that counsel filed a "Notice of Association" with a law firm to "represent all of his clients during the pendency of [counsel's] suspension." (Doc. 1, at 8).
The Court of Appeals was not objectively unreasonable in finding that the communication gap between trial counsel and Petitioner while trial counsel was suspended from the practice of law (with the suspenson beginning after the first trial and ending before the second trial) had not resulted in a denial of Petitioner's Sixth Amendment right to counsel. The temporary gap in communication between Petitioner and trial counsel was not a complete breakdown in communication, and Petitioner makes no showing that the temporary gap denied him his Sixth Amendment right to counsel, in particular where he had substitute counsel during the gap in communication and where Petitioner does not dispute the Court of Appeals' finding that trial counsel had been competent at trial. See Stenson, 504 F.3d at 886-88 (finding no Sixth Amendment violation where representation had been competent and communication issues not severe enough to constitute constructive denial of counsel). Accordingly, Petitioner's claim of a Sixth Amendment violation based on the denial of his motion to change counsel lacks merit and the Court will recommend that it be denied.
VII. Ground Four - Sentencing.
Petitioner does not allege a cognizable claim for federal habeas relief in Ground Four, where he asserts that the trial court "erred by failing to timely sentence" him. (Doc. 1, at 9). In his direct appeal, Petitioner argued that the trial court violated the Arizona Rules of Criminal Procedure by failing to timely sentence Petitioner. (Doc. 10-1, Ex. K, at 27-30). The Court of Appeals held that Petitioner "did not object below, and indeed, requested numerous times that his sentencing hearing be continued." Sharpe I, 2017 WL 3097584, at *2. Therefore, the Court of Appeals found that Petitioner had forfeited review except for fundamental error, and because he did not argue such error was fundamental, any argument was waived on appeal. (Id.).
In his Petition for Writ of Habeas Corpus, Petitioner points to state case law and in his Reply states he "only found state law to support [his] claim." (Doc. 1, at 9; Doc. 11, at 8). "[F]ederal habeas corpus relief does not lie for errors of state law" unless such errors amount to an independent due process violation or other "extreme circumstance" such as "obvious subterfuge to evade consideration of a federal issue." Mullaney v. Wilbur, 421 U.S. 684, 691 & n.11 (1975); see also Smith v. Ryan, 823 F.3d 1270, 1282 & n.8 (9th Cir. 2016) (federal habeas review is only available when state law error "rises to the level of a due process violation"); Lewis v. Jeffers, 497 U.S. 764, 780-81 (1990) (holding federal habeas review of a state court's application of state law is limited to whether it was "so arbitrary and capricious as to constitute an independent due process" or Constitutional violation). No due process violation or "extreme circumstance" is alleged here, therefore, Ground Four does not entitle Petitioner to federal habeas relief.
VIII. Conclusion.
The Court finds that the Arizona Court of Appeals was not objectively unreasonable in its denial of Petitioner's Sixth Amendment claims in Grounds One and Three, Petitioner was given a full and fair opportunity to litigate the Fourth Amendment claim alleged in Ground Two, and Ground Four is a non-cognizable federal claim. The Court will therefore recommend that the Petition for Writ of Habeas Corpus (doc. 1, 9) be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (doc. 1, 9) be DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have 14 days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed. R. Civ. P. 72.
Dated this 22nd day of June, 2020.
/s/_________
Honorable Michael T. Morrissey
United States Magistrate Judge